Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 EMMA LOPEZ GUERRERO, Case No.: 3:26-cv-01966-RBM-DDL 11 Petitioner, ORDER GRANTING PETITION 12 v. FOR WRIT OF HABEAS CORPUS 13 PATRICK DIVVER, Field Office Director of [Doc. 1] Enforcement and Removal Operations, San 14 Diego Field Office, Immigration and Customs 15 Enforcement, et al., 16 Respondents. 17 18 Pending before the Court is Petitioner Emma Lopez Guerrero’s (“Petitioner”) 19 Petition for a Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2241 (Doc. 1.) 20 For the reasons below, the Court GRANTS the Petition. 21 I. BACKGROUND 22 Petitioner is a citizen of Mexico who entered the United States without inspection 23 on August 28, 2025. (Doc. 4 at 2 (citing Doc. 4-1 at 2–3).) Petitioner was determined to 24 be inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i), placed in expedited removal 25 proceedings under U.S.C. § 1225(b), and taken into Immigration and Customs 26 Enforcement (“ICE”) custody. (Id.) An asylum officer determined that Petitioner failed 27 to establish a credible fear of persecution in Mexico, but an immigration judge vacated the 28 negative credible fear finding on September 19, 2025. (Id. (citing Doc. 4-4 at 2).) 1 On October 3, 2025, Petitioner was issued a Notice to Appear, which initiated full 2 removal proceedings against her under § 1229a. (Id.) Her initial master calendar hearing 3 was October 16, 2025. (Id.) At her individual merits hearing on March 25, 2026, an 4 immigration judge denied Petitioner’s applications for asylum, withholding of removal, 5 and relief under the Convention Against Torture (“CAT”) and ordered Petitioner removed 6 to Mexico. (Id. (citing Doc. 4-5 at 2–4).) Petitioner timely filed an appeal of her removal 7 order to the Board of Immigration Appeals (“BIA”). (Id. at 3.) That appeal remains 8 pending. (Id.) 9 Petitioner filed her Petition on March 27, 2026. (Doc. 1.) The Court set a briefing 10 schedule shortly thereafter. (Doc. 2.) On April 6, 2026, Respondents filed their Return to 11 Petition for Writ of Habeas Corpus (“Response”). (Doc. 4.) Petitioner was authorized to 12 file a reply on or before April 13, 2026, but did not file one. 13 II. LEGAL STANDARD 14 A writ of habeas corpus is “available to every individual detained within the United 15 States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S. Const., Art. I, § 9, cl. 2). 16 “The essence of habeas corpus is an attack by a person in custody upon the legality of that 17 custody, and . . . the traditional function of the writ is to secure release from illegal 18 custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). “Writs of habeas corpus may 19 be granted by the Supreme Court, any justice thereof, the district courts and any circuit 20 judge within their respective jurisdictions.” 28 U.S.C. § 2241(a). The petitioner bears the 21 burden of demonstrating that “[h]e is in custody in violation of the Constitution or laws or 22 treaties of the United States.” Id. § 2241(c)(3). 23 III. DISCUSSION 24 It is undisputed that Petitioner is subject to mandatory detention under 8 U.S.C. 25 § 1225(b). (See Doc. 1 at 2; Doc. 4 at 5.) Accordingly, the issue before the Court is 26 whether, under the circumstances of this case, applying the mandatory detention provisions 27 of § 1225(b) violates Petitioner’s due process rights. Petitioner argues that her detention 28 has become unconstitutionally prolonged. (Doc. 1 at 6–11.) Respondents argue that 1 Petitioner’s “detention is mandated by 8 U.S.C. § 1225(b)(1)(B)(ii) until the conclusion of 2 her appeal before the Board of Immigration Appeals,” and that “even if the Court infers a 3 constitutional right against prolonged mandatory detention, Petitioner’s claim still fails.” 4 (Doc. 4 at 1–2, 9–14.)1 5 The Court finds that an unreasonably prolonged detention under § 1225(b) without 6 a bond hearing violates due process, and that Petitioner’s detention has become 7 unreasonably prolonged. 8 A. Due Process 9 Respondents argue that “inadmissible arriving noncitizens seeking initial entry into 10 the United States . . . have no due process rights ‘other than those afforded by statute.’” 11 (Doc. 4 at 7 (quoting Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 107 (2020)).) 12 The Court recently explained its rationale for rejecting Respondents’ argument. See Xie v. 13 LaRose, Case No.: 3:26-cv-01116-RBM-MMP, 2026 WL 836351, at *2–3 (S.D. Cal. Mar. 14 26, 2026). The Court incorporates its reasoning in Xie, makes the same findings here, and 15 “joins the majority of courts across the country in concluding that an unreasonably 16 prolonged detention under 8 U.S.C. § 1225(b) without an individualized bond hearing 17 violates due process.” Kydyrali v. Wolf, 499 F. Supp. 3d 768, 772 (S.D. Cal. 2020). 18 B. Prolonged Detention 19 The Court applies a six-factor balancing test to analyze whether detention under 20 § 1225(b) has become unreasonably prolonged. See id. at 773. Under this test, the Court 21 considers: 22 23 1 Respondents also argue that the Court lacks jurisdiction to hear the Petition under 24 8 U.S.C. § 1252(g). (Doc. 4 at 4–5.) The Court has consistently rejected this argument, 25 see Constantinovici v. Bondi, 806 F. Supp. 3d 1155, 1161–62 (S.D. Cal. 2025), and does so again here for the same reasons. Petitioner is challenging her detention under the Fifth 26 Amendment’s Due Process Clause. She is thus enforcing her “constitutional rights to due 27 process in the context of the removal proceedings—not the legitimacy of the removal proceedings or any removal order.” Garcia v. Noem, 803 F. Supp. 3d 1064, 1074 (S.D. 28 1 (1) the total length of detention to date; (2) the likely duration of future detention; (3) conditions of detention; (4) delays in the removal proceedings 2 caused by the detainee; (5) delays in the removal proceedings caused by the 3 government; and (6) the likelihood that the removal proceedings will result in a final order of removal. 4 5 Gao v. LaRose, 805 F. Supp. 3d 1106, 1111 (S.D. Cal. 2025). 6 As to the first factor, which has been described as “the most important,” Banda v. 7 McAleenan, 385 F. Supp. 3d 1099, 1118 (W.D. Wash. 2019), Petitioner has been detained 8 for over seven months. (See Doc. 4 at 2.) Respondents argue that “the length of Petitioner’s 9 detention fall[s] comparatively short of the length courts in this district have found to 10 warrant habeas relief.” (Id. at 12.) As another court in this District noted, though, “[c]ourts 11 have found detention over seven months without a bond hearing weighs toward a finding 12 that it is unreasonable.” Abdul Kadir v. Larose, Case No.: 25cv1045-LL-MMP, 2025 WL 13 2932654, at *5 (S.D. Cal. Oct. 15, 2025) (collecting cases). The length of detention thus 14 weighs in Petitioner’s favor. 15 As to the second factor, the Court finds that Petitioner has reason to anticipate 16 significant future detention. Petitioner’s appeal to the BIA remains pending, and the 17 “undetermined, but likely significant, period of mandatory detention through the appeals 18 process” weighs in favor of Petitioner. Gao, 805 F. Supp. 3d at 1111; accord Guatam v. 19 Corr. Corp. of Am., Case No.: 3:25-cv-3600-JES-DEB, 2026 WL 25846, at *5 (S.D. Cal. 20 Jan. 5, 2026) (“a removal order may not become final until after the appeals [the petitioner] 21 could file, to both the Board of Immigration Appeals and Ninth Circuit”); Masood v. Barr, 22 Case No. 19-cv-07623-JD, 2020 WL 95633, at *3 (N.D. Cal. Jan. 8, 2020) (“The BIA 23 appeal . . . [is a] perfectly legitimate proceeding[] he is legally entitled to pursue,” and the 24 respondents “cannot predict with any degree of confidence when the BIA appeal will be 25 resolved,” which “could lead to further proceedings that might take up many more months, 26 or even years.”). 27 As to the third factor, “[t]he more that the conditions under which the [noncitizen] 28 is being held resemble penal confinement, the stronger his argument that he is entitled to a 1 bond hearing.” Banda, 385 F. Supp. 3d at 1119 (citation omitted). Petitioner is detained 2 at Otay Mesa Detention Center, the conditions of which other courts have found 3 “indistinguishable from penal confinement.” Kydyrali, 499 F. Supp. 3d at 773 (citation 4 omitted). The conditions of confinement weigh in Petitioner’s favor. 5 The fourth and fifth factors are neutral, as there is nothing in the record to suggest 6 that either Party caused meaningful delay in the removal proceedings. 7 As to the sixth factor, Petitioner's applications for asylum, withholding of removal, 8 and CAT relief were all denied. (Doc. 4-5 at 2–4.) This makes it more likely that the 9 removal proceedings will result in a final order of removal. Cf. Abdul Kadir, 2025 WL 10 2932654, at *5 (finding that the petitioner's grant of asylum was a strong indication that he 11 would not receive a final order of removal). This weighs against Petitioner. 12 Three of the factors, including “the most important one,” weigh in Petitioner’s favor, 13 and one weighs against her. Therefore, the Court finds that Petitioner’s detention under 14 § 1225(b) has become unreasonably prolonged and that due process requires that she be 15 provided with a bond hearing. 16 IV. CONCLUSION 17 For the foregoing reasons, the Petition is GRANTED. Respondents are ORDERED 18 to arrange an individualized bond hearing for Petitioner before an immigration judge within 19 fourteen (14) days of entry of this Order to determine whether his continued detention is 20 warranted. Respondents shall bear the burden of establishing, by clear and convincing 21 evidence,2 that Petitioner poses a danger to the community or a risk of flight. If no hearing 22 23 2 See Sadeqi v. LaRose, 809 F. Supp. 3d 1090, 1095 (S.D. Cal. 2025) (“Petitioner is entitled 24 to a prompt and individualized bond hearing, at which Respondents must justify her 25 continued detention by a showing of clear and convincing evidence that Petitioner would likely flee or pose a danger to the community if released.”) (citing Singh v. Holder, 638 26 F.3d 1196, 1203 (9th Cir. 2011), abrogated on other grounds by Jennings v. Rodriguez, 27 583 U.S. 281 (2018) (explaining that “the substantial liberty interest at stake” warranted placing the burden on the government to “prove by clear and convincing evidence that [a 28 1 ||occurs within fourteen (14) days of entry of this Order, Petitioner shall be released from 2 Respondents’ custody. On or before May 4, 2026, Respondents SHALL FILE a status 3 || report indicating whether and when Petitioner received a bond hearing, and the outcome of 4 || that bond hearing. 5 IT IS SO ORDERED. 6 ||DATE: April 14, 2026 eet Besrnidkr, Moitttsgges > g ON. RUTH BERMGDEZ! MONTENEGRO UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28